What is mediation?
Mediation is a confidential process by which a neutral third party (the mediator) assists the parties to come to an agreement settling their dispute on terms which each finds acceptable.
Mediation is not a trial or arbitration, and the mediator is not there to give a judgment or make an award. He/she is not there to decide disputes of fact or law, or to decide who is right or wrong. He/she is there to assist the parties to negotiate a mutually acceptable compromise of their dispute, by focussing on why and how a settlement should be approached and how it can be achieved in their own interests. If the dispute is capable of settlement, it is for the parties to decide if and how it settles.
How does the mediation process work?
Can I choose a 4-5 mediator if a 4-5 barrister is acting in the case?
- Mediation usually lasts for one day, although more complicated cases may take more. There is no formal process, but a typical mediation will take the following course:
- Having selected the mediator, the parties will sign the mediation agreement, which sets out the rules under which the mediation will be conducted, and by which all parties agree to be bound. In particular, the whole process is confidential, and that there can be no final settlement unless and until all parties have signed a written agreement.
- Prior to the mediation, the parties will have supplied the mediator with the essential documents in the case, a statement of their case for the purposes of the mediation, and a costs schedule.
- In preparing for the mediation, the parties and their lawyers should consider the following matters:
- What documents are necessary to produce for the mediation? It is not usually necessary to provide all documents which are in the parties’ possession, but only those which are important and which the mediator needs to read prior to the mediation.
- Give thought to the strengths and weaknesses of their case, as a matter of law and fact.
- Explore and identify any matters of a commercial or private nature which are important to the parties – these may not be limited to the strict confines of the dispute itself.
- Consider, apart from the parties and their lawyers, who else should attend the mediation, and why they should do so. Will any such additional members add value to your team. In this context consideration might be given to any expert witness, important witness as to fact, or an insurance representative. There may be others.
- Make sure that those attending the mediation have authority to settle, and the limits of any authority.
- Think of all possible solutions to the dispute.
- Calculate the legal costs to date, and the estimated costs to trial.
- Prepare the mediation position statement. This is not a formal “pleading”, but a concise statement of your position at and your expectations from the mediation. Exchange with the other parties and the mediator.
- The mediation statement and bundle of documents need to be delivered to the mediator in good time for reading prior to the mediation.
- Consider what terms might have to be included in any settlement agreement – mediation is often unnecessarily extended on the day by the drafting of a mediation settlement agreement.
- The mediator will endeavour to contact the parties/their lawyers to introduce him/herself before the mediation day to discuss any issues in advance of the mediation. Any such discussions will be on a strictly confidential basis.
- At the mediation venue, the parties will be allocated their own private room, where they will spend most of their time during the mediation process.
- The mediator will meet each party in their private rooms for private confidential sessions with the mediator. This means that the mediator is not at liberty to disclose to the other parties anything he or she is told in confidence by a party in private session, unless permitted to do so.
- At that private meeting, the mediator will explain the mediation process, including the guiding principles that the mediation is held on a “without prejudice” basis, and is confidential. This means that what takes place at the mediation may not be disclosed to third parties or to a trial judge if the mediation is unsuccessful. The mediator will also explain that joint sessions between the parties only take place with the agreement of the parties.
- When all parties are present, and the mediator has become acquainted with those attending, as well as having had a general discussion of the issues which arise from the dispute, he/she will bring the parties together in a joint session, if appropriate. At the joint session, the parties have the opportunity to explain their case directly to and in the presence of the other parties.
- After the joint session, the parties will return to their rooms and have further private confidential sessions with the mediator during the course of the day. There may be further joint sessions with all parties, or limited joint sessions with certain specific attendees – for example, lawyers or experts.
- If the mediation results in a settlement, the parties will sign a binding agreement. Until this is done, there is no settlement, and the dispute will continue through litigation, or other traditional dispute resolution process. However, even where mediations do not settle on the day, there is often further contact between the parties and the mediator, under the terms of the mediation agreement, which results in settlement shortly after the mediation day.
Yes, provided the parties agree on the choice of mediator. Confidentiality is always strictly maintained. Chambers has an effective “Chinese Walls” policy in place, which applies equally to mediation as to all other aspects of Chambers’ work. If, as sometimes happens, both parties are represented by a 4-5 barrister, there is absolutely no impediment to having a 4-5 mediator.
What happens it the case is not settled at the mediation?
Mediations have a high rate of success and it very often happens that, even if the dispute does not settle at the mediation, it does so soon afterwards as a direct result of the mediation process. Even after the mediation has finished, our mediators are available to continue to assist under the terms of the mediation agreement, in bringing about a settlement if the parties so wish. If the case does not settle at or soon after the mediation the parties are free to carry on with the case and, perhaps, settle it a later date.
What happens if the settlement agreement is broken?
The settlement agreement is a binding contract, which can be enforced through the Courts. Frequently, the settlement is incorporated in a court order, which makes the process of enforcement easier and quicker.
Mediation takes time, and is hard work for all attending. It is certainly not a soft option. However, if a settlement is reached, there is an enormous benefit in the saving of costs and the ending of the emotional stress which disputes engender. With thorough preparation a mediation can be very rewarding all round.